Nimisha vs Saurabh Srivastava
2013 Latest Caselaw 3255 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                          IPA No. 18 of 2012

        NIMISHA                                           ..... Petitioner
                              Through: Mr. Manish Gandhi, Advocate.

                          versus

        SAURABH SRIVASTAVA                        ..... Respondent
                       Through: Mr. Sanjiv K. Jha, Advocate.

        CORAM: JUSTICE S. MURALIDHAR

                                   ORDER

29.07.2013

IA No. 14517 of 2012 (under Order XXXIII read with Section 151 CPC)

1. The Plaintiff has filed the present suit under Section 18(2) of the Hindu

Adoption and Maintenance Act,1956 ('HAMA') against her husband, the

Defendant herein, for a decree of maintenance in the sum of Rs.40,000 per

month besides litigation expenses.

2. The Plaintiff claims that she is unable to pay the court fees and litigation

expenses and has accordingly filed IA No. 14517 of 2012 under Order

XXXIII Rule 1A CPC seeking permission to sue as an indigent.

3. When the matter was first listed on 13th August 2012 the Court directed

listing of the application under Order XXXIII Rule 1A before the Joint

Registrar ('JR') for making enquiry regarding the alleged indigence of the

Petitioner. Before the JR the statement of the Plaintiff was recorded as

under:

"I am the petitioner in the above case. I have filed the present application under Order 33 Rule 1 & 2 seeking permission to sue as an indigent person. I intend to file a suit for maintenance against the respondents. I am unemployed. I do not have any source of income. I am a freelancer trainer. I earn about Rs.5,000/- out of my freelance work. The same is inadequate for making both ends meet. I do not have any resources to pay the court fee.

There is nobody who can lend me the money to pay the court fee. The schedule filed along with the application is true and correct. I may be permitted to sue as an indigent person since I am unable to pay the court fee on my proposed suit which works out approx. to be Rs.49,142."

4. The Plaintiff has also enclosed with her application the statements of the

bank accounts in her name. She has in her affidavit dated 14th December

2012 sought to explain the entries in the bank accounts. The Plaintiff states

that she is not in a position to undertake the expense of litigation. She also

prays for interim maintenance from the Defendant.

5. A preliminary objection has been raised by the Defendant as regards the

jurisdiction of the Court. It is stated that inasmuch as the Defendant resides

in Noida, UP, the parties last resided at Noida, UP and the marriage also took

place at Noida, this Court does not have the jurisdiction to entertain the suit.

6. Learned counsel for the Plaintiff points out that the whole HAM does not

contain any provision as to the place of suing a husband, in such

circumstances Section 19(1)(iii)(a) of the Hindu Marriage Act, 1955 would

apply.

7. In Vivek Rastogi v. Archana Rastogi AIR 2010 Del 221, a Division

Bench of this Court examined the case law and held that Section 19 HMA

would also apply to an application under Section 18 HAMA. The Court held

that "Section 20 of the CPC along with Section 19 of the HM Act would

apply to any claim under the HAMA". It is not in dispute that at the time of

filing the present suit, and even now, the Plaintiff is residing in Delhi.

Consequently, the objection of the Defendant as to the jurisdiction of the

Court is hereby rejected.

8. Learned counsel for the Defendant referred extensively to the bank

statements enclosed with the Plaintiff's affidavit. According to him, the

entries in the said statement showed (i) that the Plaintiff continued to be

employed with Q-Spread, an organisation, as a 'Mentor' and (ii) that she was

not really indigent. As far as the first plea is concerned there is nothing to

indicate that the Plaintiff is in fact employed with Q-Spread. She appears to

be getting only intermittent payments. There is nothing to show that she is

employed there full time. Even the printout of the website of Q-Spread as

produced by the Defendant does not show otherwise.

9. Learned counsel for the Defendant placed extensive reliance on Mathai

M. Paikeday v. C.K. Antony (2011) 13 SCC 174. He sought to urge that on

the strength of the above decision since the Plaintiff's father and brother

have sufficient means to support her, she cannot claim that she is unable to

undertake the expenses of litigation.

10. Having examined the above decision, this Court fails to understand how

it helps the case of the Defendant. The said case did not deal with a situation

where the wife was seeking to sue the husband for maintenance. The facts

there were that the Appellant had filed two suits for recovery against the

Respondent which had been decreed in favour of the Appellant. The

Respondent then filed appeals before the High Court along with permission

to prosecute the appeals as an indigent person. Without holding an enquiry

under Order XXXIII Rule 1A CPC, the High Court permitted the

Respondent to proceed with the appeal as an indigent person. On remand by

the Supreme Court, the High Court passed a fresh order, after conducting an

enquiry, and still permitted the Respondent to prosecute the appeals as an

indigent person. On facts, the Supreme Court found that the Respondent's

son was sending him money and the Respondent failed to establish that "the

amount of money received from his son was not substantial or insufficient to

pay the court fees." The failure by the Respondent to produce the passbook

was held to amount to suppression of facts for which an adverse inference

could be drawn against the Respondent.

11. In the present case, the Plaintiff has produced her entire bank statement

which substantiates her plea that she is receiving only intermittent amounts

and no regular income. The statement in her rejoinder that her brother had

helped her with the initial litigation expenses does not show that she had

been regularly supported by either her father or her brother. That the Plaintiff

was able to pay premium for two insurance policies also does not in any

manner demonstrate that she has sufficient means to pursue this litigation.

The fact remains that there is no legal obligation on the Plaintiff's father and

brother to maintain her. After she began living separately from the Plaintiff,

he has not paid her any maintenance till date.

12. Nothing has been placed on record by the Defendant to disprove the

Plaintiff's statement made on affidavit that she is only a freelancer and

earning on an average Rs.5,000 per month. For a person staying in Delhi,

Rs.5,000 per month is hardly sufficient for a decent living. The claim of the

Plaintiff that she should be permitted to pursue this litigation as in forma

pauperis is, in the circumstances, justified.

13. For all the aforementioned reasons, the Court is satisfied that Plaintiff has

insufficient means to pursue this litigation and that her prayer for permission

to sue the Defendant as in forma pauperis under Order XXXIII CPC should

be allowed. Accordingly, IA No. 14517 of 2012 is allowed and the Plaintiff

is permitted to file the suit in forma pauperis.

IA No. 346 of 2013 (under Order VII Rule 11 CPC)

14. This is an application by Defendant under Order VII Rule 11 CPC for

rejection of the plaint. The grounds urged in this application have already

been rejected in the above order. It is not possible at this stage without the

suit going to trial to conclude the other issues raised in this application.

Consequently, this Court rejects this application under Order VII Rule 11

CPC leaving it open to the parties to urge their respective contentions on

merits at the trial.

CS (OS) No.................(to be numbered by the Registry)

15. As a result of the above, IPA No. 18 of 2012 will now be registered as a

suit under Section 18 of the HAMA and be numbered accordingly. The

Defendant has already filed written statement. The Plaintiff has also filed her

replication.

16. List before the Joint Registrar on 12th December 2013 for

admission/denial of the documents. By that date, the parties will file their

affidavits by way of admission/denial and produce the originals of the

documents relied upon by them respectively.

17. List before the Court for framing of issues on 3rd January 2014.

IA No. 14515 of 2013

18. This is an application by the Plaintiff seeking interim maintenance

pending the decision in the main suit.

19. The admitted position is that the Defendant is an employee of M/s.

Honeywell Automation India Limited. Pursuant to the directions issued by

the Court, the Defendant has filed an affidavit dated 5th January 2013. He

has filed his salary slips as well as income tax returns. During the period 1st

April 2012 to 30th November 2012, his total gross salary was Rs.1,29,064.30

and after deductions the net pay was Rs.91,464.30. It is not in dispute that

the Defendant's current take home pay is approximately Rs.93,000 per

month. In terms of his affidavit, he is required to pay equal monthly

instalments of Rs.29,606 for repayment of the loans taken for two of his cars.

The Defendant does not dispute that his parents are not dependent on him.

There are no children to support. In other words, he has no other

commitments whatsoever.

20. Considering that the take home pay of the Defendant is around Rs.93,000

per month and after accounting for the repayment of the car loans, it still

leaves him with a substantial balance. Applying the proximate thumb rule of

one-third the Court finds that the Defendant can be asked to pay interim

maintenance to the Plaintiff, who has not been receiving any maintenance till

date, Rs.30,000 per month.

21. It is accordingly ordered that the Defendant will pay to the Plaintiff

interim maintenance from the date of filing of the suit i.e. 1st August 2012 @

Rs.30,000 per month. The arrears of maintenance will be paid by the

Defendant to the Plaintiff within four months from today. The current

maintenance will be paid by the Defendant to the Plaintiff in advance before

the 10th of every month. For instance, the maintenance for the month of

August 2013 will be paid to her by 10th August 2013 and thereafter on that

basis.

22. It is clarified that the present order is of an interim nature and will not

affect the final order that may be passed in the suit. Also the right of the

parties to seek variation of this order in future, if the circumstances so

warrant, is left open. The application is disposed of.

S. MURALIDHAR, J.

JULY 29, 2013 dn